Two senators say the NSA is still lying to Congress

Two Democrats on the Senate Select Committee on Intelligence say the National Security Agency provided “inaccurate” and “misleading” information to the American public about the government’s vast surveillance operations.

Senators Ron Wyden and Mark Udall sent a letter to NSA Director
Gen. Keith Alexander on Monday asking him to make revisions to a
set of fact sheets that were released by his agency to quell
concerns about domestic surveillance in the wake of leaked
documents attributed to former intelligence contractor Edward
Snowden earlier this month.

The Guardian newspaper has been publishing top-secret documents
provided by Snowden that he says proves the NSA operates
secretive spying programs that retain information on United
States citizens under Section 702 of the Foreign Intelligence
Surveillance Act (FISA) and Section 215 of the PATRIOT Act.
Snowden claims those two statutes are abused in order to surveil
American citizens, an argument Gen. Alexander’s office recently
attempted to counter by releasing a four-page set of bullet
points outlining what the US government can and can’t do under
federal law.

According to Sens. Wyden and Udall, the NSA’s response isn’t
in-tune with what they’ve been told of the programs. "We were
disappointed to see that this fact sheet contains an inaccurate
statement about how the Section 702 authority has been
interpreted by the US government," they write Gen. Alexander.
"In our judgment this inaccuracy is significant, as it
portrays protections for Americans' privacy as being
significantly stronger than they actually are."

But while the fact sheets have been made available online, Wyden
and Udall can’t explain in their public letter what their
allegations are in reference to since the lawmakers’ own
knowledge of the clandestine operations are not allowed to be
discussed, even among the constituents who elected them to the
Senate. Instead, they wrote that they’ve “identified this
inaccurate statement in the classified attachment” sent to
Alexander.

Elsewhere, the lawmakers rejected the NSA’s claim that, "Any
inadvertently acquired communication of or concerning a US person
must be promptly destroyed if it is neither relevant to the
authorized purpose nor evidence of a crime."

"We believe that this statement is somewhat misleading,”
replied the senators, “in that it implies that the NSA has the
ability to determine how many American communications it has
collected under Section 702, or that the law does not allow the
NSA to deliberately search for the records of particular
Americans. In fact, the intelligence community has told us
repeatedly that it is ‘not reasonably possible to identify the
number of people located in the United States whose
communications may have been reviewed under the authority’ of the
FISA Amendments Act.”

In a tweet sent out Monday evening, Sen. Wyden again said the
FISA fact sheet included a “significant inaccuracy.”

Significant inaccuracy in NSA's FISA fact sheet. It portrays
privacy protections as being stronger than they are. http://t.co/MbPcJUF4oc

Nowhere does the senators’ response include allegations of any
discrepancies in the Section 215 fact sheet, but both Wyden and
Udall have raised questions about how the government interprets
that provision previously. “We believe most Americans would be
stunned to learn the details of how these secret court opinions
have interpreted Section 215,” they wrote in a joint letter
to Attorney General Eric Holder last year. “As we see it,
there is now a significant gap between what most Americans think
the law allows and what the government secretly claims the law
allows. This is a problem, because it is impossible to have an
informed public debate about what the law should say when they
public doesn’t know what its government thinks the law says.”

In their letter to Gen. Alexander this week, both Udall and Wyden
wrote that they believe the US government should have “broad
authorities to investigate terrorism and espionage,” and that
it’s possible to “aggressively pursue terrorists without
compromising the constitutional rights of ordinary
Americans.”

“Achieving this goal depends not just on secret courts and
secret congressional hearings, but on informed public debate as
well,” they wrote.

But while Sens. Udall and Wyden have been long critical of
surveillance powers provided through FISA and the PATRIOT Act,
their take on the revelations exposed by Mr. Snowden differs
drastically with that of President Barack Obama and many leading
figures of his administration. Mr. Obama, Gen. Alexander and Mr.
Holder have all defended the practices used by the NSA and say
that no constitutional violations occur due to privacy safeguards
in place, as have Senate Intelligence Chair Dianne Feinstein
(D-Calif.).

“I think it’s important to recognize that you can’t have 100
percent security and also then have 100 percent privacy and zero
inconvenience,” President Obama said earlier this month.

With respect to Section 702 and Section 215, Obama said,
“These are programs that have been authorized by broad
bipartisan majorities repeatedly since 2006. And so I think at
the onset it is important to understand that your duly elected
representatives have been consistently informed on exactly what
we’re doing.”

Edward Snowden revealed himself as the contractor responsible for
the leaks published by The Guardian less than one week after the
paper first began releasing information on the programs. He gave
several interviews in Hong Kong before flying to Moscow where he
remains today, according to both the US and Russian presidents.
The anti-secrecy website WikiLeaks announced Monday that Snowden
has asked for asylum from several countries, including Iceland
and Ecuador.